Sex toys are sold all over the world, and India is no exception. However, unlike in other countries, sex toys are generally not sold in brick-and-mortar stores in India. Instead, they are sold over the internet in an inconspicuous manner. In this article, we have described the laws and regulations that govern sale of sex toys in India with a view to explain why sale of sex toys is restricted to the internet, and how sellers and online marketplaces can mitigate risk while dealing in such products.
Absence of Explicit Ban on Sale of Sex Toys in India
There is no explicit law in India that either prohibits or explicitly regulates the sale of sex toys. However, the sale of such products can be said to be regulated primarily by obscenity laws, followed by laws which generally regulate quality of goods and protect consumers’ interests.
No product category explicitly describes products that can be generally identified as falling under the class of products as sex toys, including no explicit Harmonized System of Nomenclature (HSN) classification.
Obscenity Laws
While there are no laws directed to specifically regulate products category such as sex toys, there are several other laws which require due consideration and assessment. Some of the laws and their applicability are described as under:
(a) Indian Penal Code: There is prohibition on sale of ‘obscene’ goods in India. The import, sale, distribution of obscene objects may invite punishment of imprisonment up to two years along with fine under the provisions of Indian Penal Code, 1860 (IPC). However, what can be said to be ‘obscene’ goods is not unequivocally clear in law and it can always be perception based.
An object is treated as obscene if it appeals to the prurient interest, tends to deprave, and corrupt persons, or is lascivious. However, the moot question is whether sex toys by themselves are obscene goods or not. In many jurisdictions such as the United States of America, United Kingdom, and Australia even though there are laws surrounding obscenity, sex toys are not considered to be obscene by themselves. In other words, sex and obscenity are not synonymous with each other.
However, the lines between sex and obscenity, from legal perspective, are blurred in India. It is fact that the novel ‘Lady Chatterley's Lover’ by D.H. Lawrence was banned in India in 1964 for being obscene1, whereas in the UK, the same book was allowed to be published and was adjudged by the courts in 1960 as not being obscene2.
On the other hand, judicial approach to obscenity is undergoing a paradigm shift in India. Indian courts have started applying a “Community Standard Test” acknowledging that notions of obscenity change with time and societal norms3. Thus, it is quite possible that sex toys by themselves may not be held to be obscene by Courts. In fact, the Calcutta High Court has explicitly held that sex toys are not obscene4, and the law declared by the High Court of a state is binding on all authorities and tribunals of that state5.
Despite positive judicial developments, sex toys are still not openly sold in India. This may be because there are laws which regulate indecent representation of women.
(b) Indecent Representation of Women Act: The Indecent Representation of Women (Prohibition) Act, 1986 (IRW Act), explicitly bans any portrayal of women that is likely to deprave, corrupt, or injure public morality or morals6. A violation of IRW Act may result in imprisonment up to 5 years and fine up to INR 1,00,000. The packaging, imagery and supporting literature of sex toys contains description which may be considered ‘indecent’. This discourages public exhibition of the sex toys. The implementation on this law was apparent recently by the action taken by the Maharashtra Cyber Police against the over-the-top platforms such as Alt Balaji and Ullu, for streaming ‘indecent’ contents on the platforms.
(c) Information Technology Act and Guidelines: In addition to the above discussed hurdles, the Information Technology Act, 2000, explicitly prohibits the publication or transmission of lascivious or prurient material in electronic form7. This legislation defines such material as content that is sexually explicit or arousing in nature. In line with these provisions, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, impose a significant responsibility on intermediaries. They require intermediaries (online platforms that list sex toys) to not only prevent the hosting of obscene materials on their platforms but also to implement effective content removal mechanisms8.
(d) Consumer Protection Rules: Furthermore, the sellers of sex toys and the online platforms listing such products are responsible for product details, images, and descriptions. The Information Technology Act provides a shield to the online platforms against third-party content liabilities, contingent on compliance with the Consumer Protection (E-Commerce) Rules, 20209. These rules place the onus on platforms to ensure sellers offer precise and truthful product information10. This regulatory framework significantly influences the sale and marketing of sex toys in India's e-commerce landscape, preventing misrepresentation and requiring accurate labelling and imagery to distinguish between sex toys and other items.
Challenges and Solutions
(a) Sale of Vibrators as Massagers: To circumvent the above-mentioned legal complexities surrounding the sale of sex toys in India, sellers often resort to using alternative names, such as referring to vibrators as "massagers," and providing product descriptions with minimal or no sexual connotation. This practice allows them to operate within the boundaries of the law while still catering to the demand for these products.
(b) Nomenclature of sex toys: Many vibrators and similar sex toys are marketed as "massagers,". Even the products that do not have any massaging capabilities are marketed as “massagers”. This practice raises questions about compliance with consumer protection laws and may lead to legal actions on various fronts.
(c) Importing sex toys into India: Importation of goods into India is regulated by the Customs Act, 1962. At present, the absence of specific Harmonized System of Nomenclature (HSN) codes for sex toys adds a layer of intricacy to the importation procedure. The said Act empowers customs authorities to confiscate goods that are prohibited under Indian law11. Consequently, if a sex toy is classified as obscene under Indian law, it becomes vulnerable to confiscation upon importation. Instances have arisen where importers misclassified these products, resulting in their confiscation and issuance of show cause notices by the customs authorities due to misdeclaration and the perceived obscenity of the products12.
(d) Sex toys as ‘medical devices’: Some sex toys, like massagers, may be registered as ‘medical devices’ under the Medical Devices Rules, 2017 (MDR). The Central Drugs Standard Control Organization (CDSCO) has approved certain massagers, like those used for therapy, as medical devices. However, sex toys like vibrators (‘massagers’), primarily designed for pleasure and intimacy, do not inherently possess therapeutic attributes. While some manufacturers have secured low-risk (Class A) medical device approval for such products based on disclosure, the core criterion of therapeutic application remains unfulfilled. While low-risk (Class A) medical device approval is feasible based on disclosure, it's imperative to consider the main criterion, i.e., the therapeutic application of the device.
Risk Mitigation to Sell Sex Toys
The sellers must ensure that sex toys are imported legitimately, adhering to all customs regulations. Online platforms should vet sellers, verifying their track records, and confirming the legality of their imports. To maintain compliance, these products should never be marketed or presented to a young audience, and the product descriptions and images should remain tasteful and non-obscene. The product details should reflect the products' true attributes without exaggerated claims. Furthermore, the terms and conditions of online platforms must explicitly state that the website contains adult products, prohibiting access for those below 18, and enforce effective age verification mechanisms.
Conclusion
While there are no explicit bans on sex toys, navigating the legal landscape demands careful consideration of representation, descriptions, and adherence to obscenity and indecency laws. As the legal standards for obscenity are subjective, sellers and e-commerce platforms must exercise prudence, vigilance, and due diligence when dealing with these products.
